EXHIBIT 4.3
TRIARC COMPANIES, INC.
STOCK OPTION PLAN
FOR CABLE CAR EMPLOYEES
WHEREAS, pursuant to the Agreement and Plan of Merger dated June 24,
1997, as amended (the "Merger Agreement"), by and among Triarc Companies, Inc.,
a Delaware corporation (the "Company"), CCB Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of the Company ("Mergerco") and Cable
Car Beverage Corporation ("Cable Car"), relating to the merger of Mergerco with
and into Cable Car (the "Merger"), each option (the "Cable Car Optionee")
exercisable for shares of Cable Car's common stock, par value $.01 per share,
issued pursuant to stock option agreements between such holder and Cable Car
(the "Cable Car Options") at the effective time of the Merger, which occurred on
November 25, 1997 (the "Effective Time"), by virtue of the Merger and without
any action on the part of the holder thereof, was assumed by the Company and
became and represented an option exercisable for shares of the Company's Class A
Common Stock, par value $.10 per share (the "Replacement Options");
WHEREAS, (i) the exercise price of the shares issuable upon exercise
of a Replacement Option shall be determined by dividing the exercise price of
the applicable Cable Car Option by 0.1722, (ii) the number of shares issuable
upon exercise of a Replacement Option shall be determined by multiplying the
number of shares issuable upon exercise of the applicable Cable Car Option by
0.1722, (iii) all of the Replacement Options are immediately exercisable and
(iv) each Replacement Option has the same expiration date as the Cable Car
Option it is replacing;
WHEREAS, the Company wishes to adopt this Plan to evidence the
Replacement Options;
NOW, THEREFORE,
SECTION 1. PURPOSE. The purpose of this Triarc Companies, Inc. Stock
Option Plan for Cable Car Employees is to promote the interests of Cable Car and
the Company and their stockholders by enabling the Cable Car Optionees to
participate in the long-term growth and financial success of the Company and
Cable Car.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms
shall have the meanings set forth below:
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"Affiliate" shall mean (i) any entity that, directly or indirectly,
is controlled by, controls or is under common control with, the Company and (ii)
any entity in which the Company has a significant equity interest, in either
case as determined by the Committee.
"Award Agreement" shall mean an agreement, contract or other
instrument evidencing an Option hereunder.
"Cable Car Award Agreement" shall mean each Agreement, contract, or
other instrument or document evidencing a Cable Car Option, which, as a result
of the Merger was assumed by the Company and became a Replacement Option Award
Agreement.
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" shall mean the compensation committee of the Board, the
Performance Compensation Subcommittee or such other committee or subcommittee of
the Board as may be designated by the Board to administer the Plan.
"Common Stock" shall mean the Company's Class A Common Stock, par
value $.10 per share.
"Company" shall mean Triarc Companies, Inc., together with any
successor thereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" shall mean, (A) with respect to any property
other than Shares, the fair market value of such property determined by such
methods or procedures as shall be established from time to time by the Committee
and (B) with respect to the Shares, as of any date, (i) the closing price per
Share as reported on the composite tape for securities traded on the New York
Stock Exchange for such date (or if not then trading on the New York Stock
Exchange, the closing price per Share on the stock exchange or over-the-counter
market on which the Shares are principally trading on such date), or, if there
were no sales on such date, on the closest preceding date on which there were
sales of Shares, or (ii) in the event there shall be no public market for the
Shares on such date, the fair market value of the Shares as determined in good
faith by the Committee.
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"Option" shall mean a right to purchase Shares from the Company
pursuant to the Plan.
"Participant" shall mean any Cable Car Optionee whose Cable Car
Option became a Replacement Option as a result of the Merger and is eligible to
participate in the Plan pursuant to Section 5 hereof.
"Person" shall mean any individual, corporation, limited liability
company, partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
"Plan" shall mean this Triarc Companies, Inc. Stock Option Plan for
Cable Car Employees.
"Replacement Option Award Agreements" shall mean those Cable Car
Award Agreements that were assumed by the Company pursuant to the Merger and
evidence the Replacement Options.
"Rule 16b-3" shall mean Rule 16b-3 as promulgated and interpreted by
the SEC under the Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto, and shall include the Staff thereof.
"Shares" shall mean the common shares of the Company, $.10 par
value, or such other securities of the Company (i) into which such common shares
shall be changed by reason of a recapitalization, merger, consolidation,
split-up, combination, exchange of shares or other similar transaction or (ii)
as may be determined by the Committee pursuant to Section 4(b).
"Subsidiary" shall mean (i) any entity that, directly or indirectly,
is controlled by the Company and (ii) any entity in which the Company has a
significant equity interest, in either case as determined by the Committee
SECTION 3. ADMINISTRATION. (a) The Plan shall be administered by the
Committee. Subject to the terms of the Plan, the Replacement Option Award
Agreements and applicable law, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the Committee shall have
full power and authority to: (i) determine the terms and conditions of any
Option; (ii) determine whether, to what extent and under what circumstances
Options may be canceled, forfeited or suspended and the method or methods by
which Options may be settled, exercised, canceled, forfeited or suspended; (iii)
interpret, administer reconcile
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any inconsistency, correct any default and/or supply any omission in the Plan
and any instrument or Agreement relating to, or Option made under, the Plan;
(iv) establish, amend, suspend, or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of the
Plan; and (vi) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan.
(b) Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Option shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive and binding
upon all Persons, including the Company, any Affiliate, any Participant, any
holder or beneficiary of any Option and any shareholder.
(c) No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
hereunder.
SECTION 4. SHARES AVAILABLE FOR OPTIONS.
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section
4(b), the aggregate number of Shares with respect to which Options may be
granted under the Plan shall be 154,931.
(b) ADJUSTMENTS. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such
that an adjustment is determined by the Committee in its discretion to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number of Shares or other securities of the Company (or number and kind
of other securities or property) with respect to which Options may be granted,
(ii) the number of Shares or other securities of the Company (or number and kind
of other securities or property) subject to outstanding Options, and (iii) the
exercise price with respect to any Option or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Option in
consideration for the cancellation of such Option in an amount equal to the
excess, if any, of the Fair Market Value of the Shares subject to the Options
over the aggregate exercise price of such Option.
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(c) SOURCES OF SHARES DELIVERABLE UNDER OPTIONS. Any Shares
delivered pursuant to an Option may consist, in whole or in part, of authorized
and unissued Shares or of treasury Shares or of Shares purchased on the open
market.
SECTION 5. ELIGIBILITY. Any Cable Car Optionee who was a holder of a
Cable Car Option immediately prior to the Effective Time of the Merger and who
received a Replacement Option (which has not been exercised or expired prior to
the Effective Date) shall be a Participant under the Plan.
SECTION 6. STOCK OPTIONS.
(a) OPTIONS. The Replacement Options issued hereunder shall have the
following terms and conditions: (i) the exercise price of the Replacement
Options will be determined pursuant to Section 6(b) below, (ii) the number of
Shares issuable upon exercise of each Replacement Option shall be determined by
multiplying the number of Shares issuable upon exercise of the applicable Cable
Car Option by 0.1722 (with the result of such calculation rounded to the nearest
whole number), (iii) all Replacement Options shall be fully vested and
exercisable pursuant to the Merger, and (iv) each Replacement Option shall have
the same expiration date as the Cable Car Option it is replacing.
(b) EXERCISE PRICE. The exercise price of a Replacement Option shall
be determined by dividing the exercise price of the Cable Car Option as set
forth in the applicable Cable Car Award Agreement by 0.1722 (with the result of
such calculation rounded to the nearest whole cent).
(c) EXERCISE. Each Replacement Option shall be exercisable at such
times and subject to such terms and conditions as specified in the applicable
Cable Car Award Agreement or thereafter (taking into account the acceleration of
vesting as a result of the Merger). The Committee may impose such conditions
with respect to the exercise of Options, including without limitation, any
relating to the application of federal or state securities laws, as it may deem
necessary or advisable.
(d) PAYMENT. No Shares shall be delivered pursuant to any exercise
of an Option until payment in full of the aggregate exercise price therefor is
received by the Company. Such payment may be made in cash or by check.
SECTION 7. AMENDMENT AND TERMINATION.
(a) AMENDMENTS TO THE PLAN. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or any portion thereof at any time; PROVIDED
that no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to
comply with any tax or
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regulatory requirement applicable to the Plan; and PROVIDED, FURTHER, that any
such amendment, alteration, suspension, discontinuance or termination that would
impair the rights of any Participant or any holder or beneficiary of any Option
theretofore granted shall not to that extent be effective without the consent of
the affected Participant, holder or beneficiary.
(b) AMENDMENTS TO OPTIONS. The Committee may waive any conditions or
rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, any Option theretofore granted, prospectively or retroactively;
PROVIDED that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of any
Participant or any holder or beneficiary of any Option theretofore granted shall
not to that extent be effective without the consent of the affected Participant,
holder or beneficiary.
(c) ADJUSTMENT OF OPTIONS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. The Committee is hereby authorized to make adjustments in
the terms and conditions of, and the criteria included in, Options in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4(b) hereof) affecting the Company, any
Affiliate or the financial statements of the Company or any Affiliate, or of
changes in applicable laws, regulations or accounting principles, whenever the
Committee determines that such adjustments are appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan.
SECTION 8. GENERAL PROVISIONS.
(a) NONTRANSFERABILITY. Each Option shall be exercisable only by the
Participant during the Participant's lifetime, or, if permissible under
applicable law, by the Participant's legal guardian or representative and no
Option may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant otherwise than by will or by the laws
of descent and distribution and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance.
(b) NO RIGHTS TO OPTIONS. No Participant or other Person shall have
any claim to be granted any Option, and there is no obligation for uniformity of
treatment of Participants, or holders or beneficiaries of Options. The terms and
conditions of Options and the Committee's determinations and interpretations
with respect thereto need not be the same with respect to each Participant
(whether or not such Participants are similarly situated).
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(c) SHARE CERTIFICATES. All certificates for Shares or other
securities of the Company or any Affiliate delivered under the Plan pursuant to
any Option or the exercise thereof shall be subject to such stop transfer orders
and other restrictions as the Committee may deem advisable under the Plan or the
rules, regulations, and other requirements of the SEC, any stock exchange upon
which such Shares or other securities are then listed, and any applicable
Federal or state laws, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(d) WITHHOLDING.
A Participant may be required to pay to the Company or any
Affiliate and the Company or any Affiliate shall have the right and is hereby
authorized to withhold from any Option, from any payment due or transfer made
under any Option or under the Plan or from any compensation or other amount
owing to a Participant the amount (in cash, Shares, other securities, other
Option or other property) of any applicable withholding taxes in respect of an
Option, its exercise, or any payment or transfer under an Option or under the
Plan and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes.
(e) AWARD AGREEMENTS. Each Cable Car Award Agreement has been
assumed by the Company, as amended pursuant to the Merger Agreement, and as
provided for herein.
(f) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained
in the Plan shall prevent the Company or any Affiliate from adopting or
continuing in effect other compensation arrangements, which may, but need not,
provide for the grant of options (subject to shareholder approval if such
approval is required), and such arrangements may be either generally applicable
or applicable only in specific cases.
(g) NO RIGHT TO EMPLOYMENT. The grant of an Option shall not be
construed as giving a Participant the right to be retained in the employ of, or
in any consulting relationship to, the Company or any Affiliate. Further, the
Company or an Affiliate may at any time dismiss a Participant from employment or
discontinue any consulting relationship, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Cable
Car Award Agreement or Award Agreement.
(h) NO RIGHTS AS SHAREHOLDER. Subject to the provisions of the
applicable Option, no Participant or holder or beneficiary of any Option shall
have any rights as a shareholder with respect to any Shares to be distributed
under the Plan until he or she has become the holder of such Shares.
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(i) GOVERNING LAW. The validity, construction and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of Delaware.
(j) SEVERABILITY. If any provision of the Plan or any Option is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or as to any Person or Option, or would disqualify the Plan or any Option under
any law deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform the applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Option, such provision shall be stricken
as to such jurisdiction, Person or Option and the remainder of the Plan and any
such Option shall remain in full force and effect.
(k) OTHER LAWS. The Committee may refuse to issue or transfer any
Shares or other consideration under an Option if, acting in its sole discretion,
it determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation or entitle the
Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in
connection with the exercise of such Option shall be promptly refunded to the
relevant Participant, holder or beneficiary. Without limiting the generality of
the foregoing, no Option granted hereunder shall be construed as an offer to
sell securities of the Company, and no such offer shall be outstanding, unless
and until the Committee in its sole discretion has determined that any such
offer, if made, would be in compliance with all applicable requirements of the
U.S. federal and any other applicable securities laws.
(l) NO TRUST OR FUND CREATED. Neither the Plan nor any Option shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any Affiliate and a Participant or
any other Person. To the extent that any Person acquires a right to receive
payments from the Company or any Affiliate pursuant to an Option, such right
shall be no greater than the right of any unsecured general creditor of the
Company or any Affiliate.
(m) NO FRACTIONAL SHARES. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Option, and the Committee shall determine
whether cash, other securities, or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated, or otherwise eliminated.
(n) HEADINGS. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed
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in any way material or relevant to the construction or interpretation of the
Plan or any provision thereof.
SECTION 10. TERM OF THE PLAN.
(a) EFFECTIVE DATE. The Plan shall be effective as of November 25,
1997 (the "Effective Date").
(b) EXPIRATION DATE. The Plan shall remain in effect until all
Options hereunder have been exercised or expire. No Option shall be granted
under the Plan after the Effective Date. Unless otherwise expressly provided in
the Plan or in an applicable Cable Car Award Agreement, any Option evidenced
hereunder may, and the authority of the Board or the Committee to amend, alter,
adjust, suspend, discontinue, or terminate any such Option or to waive any
conditions or rights under any such Option shall, continue until all Options
evidenced hereunder have been exercised or expire.